MGoLawyers: should Harbaugh sue separately in federal court?
To recap, Michigan and Harbaugh sued the Big Ten and Tony Petitti in state court, seeking a temporary restraining order (TRO) and preliminary injunction (PI). We obviously know the TRO has not not granted as of yet, and credible sources have reported a hearing has been scheduled for Friday. Beyond that, the reporting has been confusing and sometimes outright conflicting. It's unclear whether Judge Connors or Judge Kuhnke is hearing the case, and it's unclear whether the TRO was denied or if a ruling is still pending (for what it's worth, it's virtually unheard of for a TRO ruling to not come before the alleged injury occurs, but that's apparently what happened here). I expect the hearing on Friday to determine whether a PI, not a TRO, should be granted. Regardless, the court's inaction thus far suggests that it is not overly sympathetic to Michigan's position, and it is tough to be that optimistic about our chances on Friday. That leaves me to wonder whether there is a way to get this case before federal court.
In their complaint, Michigan argued the case is not removable to federal court on the basis of diversity jurisdiction because the University is an arm of the State of Michigan, and therefore not a "citizen" for the purposes of 28 USC § 1332.
Based on my preliminary (and quite likely incomplete) research, the 6th Circuit appears to have never ruled directly on the issue, but several district courts in the circuit have reached that conclusion (see Ewing v. Bd. of Regents of Univ. of Mich., 552 F. Supp. 881 (E.D. Mich. 1982); Univ. of Tennessee v. U.S. Fid. & Guar. Co., 670 F. Supp. 1379 (E.D. Tenn. 1987)), as have several other circuit courts. See, e.g., Univ. of S. Fla. Bd. of Trustees v. CoMentis, Inc., 861 F.3d 1234 (11th Cir. 2017); Dougherty v. Univ. of Okla. Bd. of Regents, 415 F. App’x 23 (10th Cir. 2011). In contrast, the 1st Circuit appears to have reached the opposite conclusion in a case involving the University of Rhode Island. See Univ. of Rhode Island v. A.W. Chesterton Co., 2 F.3d 1200 (1st Cir. 1993).
Assuming arguendo that a federal court would indeed lack subject matter jurisdiction if the University is a party, could Harbaugh sue individually in federal court? Bearing in mind that Harbaugh is already a named plaintiff in the state court case, could this be an avenue to get it before another judge? The key issues I can think of:
-Would a federal court have diversity jurisdiction in a suit between just Harbaugh and the Big Ten/Petitti? I would think so, but I've seen some message board posters argue that the Big Ten is not diverse from Harbaugh (a Michigan citizen) because the University is a member of the Big Ten. I'm not sure if that's true, but I am confident that the value of Harbaugh's presence is over $75k and satisfies the AIC requirement.
-Are there any preclusion/abstention doctrines that would prevent the federal court from hearing the case? I don't think claim preclusion would apply because there isn't any final judgment on the merits yet. And I don't think the abstention doctrines that I'm familiar (Pullman, Younger, Burford) with would apply, for various reasons, but perhaps Colorado River would?
-Are there any relevant extralegal strategic considerations? Or any other legal considerations that I'm missing?
What do you think, MGoLawyers? Moore deserves tremendous credit for today's victory, but we need Harbaugh back in time for Ohio State.
November 11th, 2023 at 5:36 PM ^
Yes. Burn it all fucking down
November 11th, 2023 at 5:34 PM ^
Great question and I can see the appeal of being able to fight the Big Ten on two separate fronts, but given that the same issue is at the heart of both suits it certainly could create an issue of conflicting rulings, claim preclusion, etc.
November 11th, 2023 at 5:34 PM ^
I would not be surprised if they came back, or the NCAA did, with some more so-called evidence before that game to ensure that he won't be at that game.
November 11th, 2023 at 5:46 PM ^
They spent their shot.
Whatever they have left is simple reaffirming what Stallions did.
November 11th, 2023 at 5:52 PM ^
So, the NCAA is allowed to share evidence of questionable veracity to the B1G and to leak information about ongoing investigations to the general public, and Michigan is required to remain quiet? Speaking of leaks, SignGate is the second time this year when the NCAA has leaked information about investigations involving Michigan. When a third party, not the NCAA, is leaking allegations that fall within the scope of an NCAA investigation, why would Michigan not be allowed to respond?
How can the University defend itself in the courts of public opinion and Washtenaw County re injunctive relief/TRO while maintaining silence as required by the NCAA's a gag order? Talk about something inequitable.
I'd also like to hear some of the attorneys on Mgoblog weigh in on whether they believe there are monetary damages which could be recovered by the University and/or Harbaugh.
November 11th, 2023 at 5:57 PM ^
Michigan isn’t staying silent through vis-a-vis the Big Ten though. They filed a response, as did Harbaugh. I have seen no indication that they held back information in those responses, but maybe I missed something.
November 11th, 2023 at 7:42 PM ^
At this point I think we will just continue to beat that ass whether they keep coach suspended or not
November 11th, 2023 at 5:41 PM ^
A hunch not a legal opinion:
A federal subject matter claim gets them into federal court
i can think of two ideas: 1. Sec 1983 where U is actually the defendant. There’s a theory that if UM is tasked with administering the penalty, BigTen action can become state action. I think there’s a case with a former Buffalo coach that tried this but it was really strained logic and this seems an even bigger leap, 2. The antitrust theory that was floating a few days ago (but really NCAA is better target than Big Ten for this).
State courts are fine for now though. Let Big Ten try to remove
November 11th, 2023 at 5:48 PM ^
I wouldn’t read to much into the TRO not being granted. It wasn’t impossible but 12 hours is really quick turnaround for any court action, even on an emergency basis.
November 11th, 2023 at 5:51 PM ^
This plus the conditions for a TRO were not in M’s favor. Something about “irreparable harm” (Michigan just won) and urgency (it was a game). Yes yes yes I’m aware of the counterarguments but my point is that those conditions don’t apply to a full hearing.
November 11th, 2023 at 6:53 PM ^
Since Harbaugh is a plaintiff in the action the court would have to consider the harm to him personally. Not being able to coach a game that is only played once is exactly the kind of harm that money damages could not remedy. If I’ve been duped by rumors and Harbaugh isn’t a party to action ignore this.
I think UM’s bigger issue is that the B1G policy gives a lot of leeway to the commissioner so Pettiti (Fuck him) may have acted permissibly so the judge may not have thought UM was more likely than not to would win on the merits.
My tin foil hat theory is the judge wants the B1G and Pettiti to try and explain some of the most illogical reasons for suspending Harbaugh on the record.
November 11th, 2023 at 10:27 PM ^
Judge Tim Connors, who also is a UM Law School lecturer, declined to make the ruling Saturday. Most TRO requests are not ruled on because the court wants to make a complete record before ruling. The hearing on Friday will be about whether to grant a preliminary injuction. A TRO typically is reserved for extraordinary situations when the threat of irreperatble harm is imminent and there's not enough time for the other party to be heard.
November 11th, 2023 at 5:54 PM ^
Not now; would be (rightly) accused of judge-shopping.
November 11th, 2023 at 5:57 PM ^
Federal court might have to abstain at this point since there is a pending state court matter on the same issue, but not sure I can think of a case where the plaintiff sued first in state court and then later in federal court while the state matter remained pending.
November 11th, 2023 at 5:57 PM ^
I wouldn’t read to much into the TRO not being granted. It wasn’t impossible but 12 hours is really quick turnaround for any court action, even on an emergency basis.
November 11th, 2023 at 6:08 PM ^
He could, and the federal court would have jurisdiction. But as others have pointed out, there are forum shopping issues if he joined the initial action as a plaintiff.
In hindsight, the university decision to file in state court (and also their position that a federal court would not have jurisdiction w/r/t the university) doesn’t look great. I don’t blame them though. The court’s actions are bizarre for a TRO. Vote accordingly for your judges.
Based on the “leaks,” it seems like the TRO response surprised the university.
In terms of downsides, this is another news story at a time when the narrative is beginning to shift/die down. If you want to armchair lawyer and get creative (basically what I am doing because this
November 11th, 2023 at 6:30 PM ^
I say yes! I am not a lawyer but to me this seems like a case where they could sue them for defamation or something as Harbaugh had no knowledge of alleged allegations and the supposed evidence if I am right was stolen. Again not a lawyer but seems like they have a good case to sue the BiGTen and other teams and the PI firm and whoever hired them to slender Michigan and Harbaugh. It was all done to cut down Jim's character is was an assassination of his character imo.
November 11th, 2023 at 6:31 PM ^
The B1G admitted in writing that punishing Harbaugh had nothing to do with Harbaugh, despite not conducting an investigation, or presenting anything remotely resembling evidence, after the NCAA stated there was no link to JH. It is actionable. I would think that the University of Michigan, the Athletic Department, Coach Harbaugh, and the players could and should all bring seperate suits for damages, and to ensure that every year this doesn't happen again. The B1G has set an unthinkable precedent that mere accusation is grounds to sanction any program it feels like, in any way it feels like, under any pretext. There are millions of dollars at stake, not just this year, but every year from now on.
November 12th, 2023 at 8:33 AM ^
I’m surprised of the reaction of um fans about this. He’s only suspended for the games. If this team is as good as everyone thinks around here, and um destroys their last 2 opponents an intern could walk the sidelines pretending to be the HC.
What blows me away is that some um fans really believe that the ncaa and the Big10 are conspiring with OSU and others to destroy one of their biggest brands and cash cows. What in the world are y’all smoking? What would the Big10 have to gain by hurting one of its biggest brands? The NCAA has come out and stated that OSU and Ryan Day had absolutely nothing to do with this. The Big10 also stated that there is no evidence at all that other teams were sharing UM’s signs or running a in person scouting operations. The ncaa did however state that they have irrefutable evidence that a um staffer(Conor Stalions) was running an elaborate in person scouting operation to figure out its future opponents signs. And that other staff members knew all about it. What reason would a lowly recruiting analyst have to be on the sidelines interacting with UM’s offensive and defensive coordinators? If Harbaugh didn’t know what was going on in his program shame on him.He’s the head coach he’s supposed to make sure his staff is doing what they are supposed to be doing. He’s the lord and protector of UM’s football program.
November 11th, 2023 at 7:30 PM ^
Having worked on a federal case against the NCAA in the seventies and having won an injunction against to keep athletes eligible, if the NCAA intervenes and becomes a party, they'll probably ask to remove the case to federal court. I won't predict on the outcome of that move because I've been out of the loop on civil rights cases and federal court jurisdiction for several decades.
OT: There have been times when I've wondered if I'd started a band after graduating from law school, would I have called the band Assuming Arguendo.
November 11th, 2023 at 8:06 PM ^
As an engineer, I can’t pretend to read legal jargon when I’m drunk.
November 11th, 2023 at 8:33 PM ^
I can calculate standard deviation long-hand when I am drunk; however, I would never try to read legal jargon, while sober.